846 F.

2d 62

Robert L. JONES, Plaintiff-Appellant,

v.
Lanson NEWSOME, Defendant-Appellee.
No. 86-8297.

United States Court of Appeals,

Eleventh Circuit.
May 27, 1988.
1

C. Gordon Statham, (court appointed), Decatur, Ga., for plaintiff-appellant.

Paula K. Smith, Susan Boleyn, Asst. Attys. Gen., Atlanta, Ga., for defendantappellee.

Appeal from the United States District Court for the Northern District of
Georgia.

Before RONEY, Chief Judge, TJOFLAT, Circuit Judge and CLEMON * ,

District Judge.
CLEMON, District Judge:

In this action, Robert Lee Jones appeals the denial of his habeas corpus
petition. He was convicted of murder by a Fulton County, Georgia jury in 1982
and sentenced to a term of life imprisonment, which he is presently serving.
The Georgia Supreme Court subsequently affirmed his sentence on direct
appeal. Jones v. State, 251 Ga. 361, 306 S.E.2d 265 (1983). Guided by the
"presumption of correctness" of the factual findings made by the Georgia trial
and appellate courts, 28 U.S.C. Section 2254(d), and upon our independent
review of the record as a whole, we affirm the district court.

I.
6

The only colorable claim asserted by Jones in this appeal1 is that his in-court
identification by four witnesses at trial was tainted by impermissibly suggestive
pretrial identification procedures. He contends that the trial court should have

excluded all identification testimony, relying on the seminal case of Neil v.

Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
II.
7

On March 26, 1982, at approximately 1:00 P.M., Frances Tutt Davis was
fatally stabbed by a man wielding an icepick as she waited to board a MARTA
train in downtown Atlanta. The assailant fled the scene. There were six
witnesses to the murder.

Two of the witnesses were standing approximately two feet behind the victim
and her assailant. They were unable to see the assailant's face; but they
described him as a black male, approximately six feet tall, weighing about 200
pounds, and limping on his right leg. At trial, those witnesses were unable to
identify Jones as the assailant.

The remaining four witnesses "... viewed [Jones] in a well-lighted area, at close
range, for time spans varying from several seconds to a few minutes. One of
the witnesses even spoke to [Jones] and attempted to push him away as he was
stabbing the victim." Jones, supra, at 266.

10

Roughly a week and a half after the murder, the police showed a photographic
spread consisting of six color photographs to the four witnesses. All four
identified Jones as the possible assailant.

11

A composite drawing based on the description of the assailant by one of the

witnesses was shown to him and two other witnesses. Each of these witnesses
agreed that the composite drawing accurately portrayed the assailant.

12

Three of the four witnesses were shown a second photographic spread a few
weeks after they viewed the first photographic spread. It consisted of six black
and white photographs, including that of Jones. Jones' photograph, aside from
being the only one shown in both photographic spreads, was markedly different
in physical appearance from the other black and white photographs. The
witnesses predictably identified Jones.

13

Two of the three witnesses who had seen the second photographic array were
also shown a single photograph of Jones and three other men in prison garb.
These witnesses identified Jones.

14

A live line-up was held at the Atlanta City Jail on June 17, 1982. The three

witnesses present at this line-up again identified Jones as the assailant.

15

Although Jones' counsel filed a motion to suppress the identification evidence

prior to trial, she elected, as a matter of trial strategy, to waive a pretrial
suppression hearing.

16

At trial, after the witnesses had made their in-court identifications of Jones, the
defense counsel moved for a mistrial based on the admission of all of the
identification evidence. The trial judge recognized that "the second photo array
and the subsequent physical lineup may well have enhanced (sic) [in an]
impermissible fashion...."; and he offered to instruct the jury to disregard those
portions of the identification testimony. Counsel then withdrew her objection to
this evidence, while maintaining her position that admission of the total
evidence required the declaration of a mistrial.

III.
17

The power of federal courts to make factual findings in habeas corpus cases is
limited:

18 any proceeding instituted in a Federal court by an application for a writ of habeas

In
corpus by a person in custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual issue, made by a State court
of competent jurisdiction in a proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties, evidenced by a written finding,
written opinion, or other reliable and adequate written indicia, shall be presumed to
be correct, ... 28 U.S.C. Section 2254(d).
19

This presumption is controlling unless one or more statutorily defined

circumstances are found to exist,2 or "the record in the State court proceeding,
considered as a whole, does not fairly support [the] factual determination, ..."
Id. The burden is on the habeas corpus petitioner to prove that the State court's
factual determination was erroneous.

20

Where suggestive pretrial confrontations may have created a substantial

likelihood of irreparable misidentification at trial, the core question is whether
under the totality of the circumstances, the in-court identification was reliable.
The factors to be weighed in arriving at the ultimate conclusion are (1) the
opportunity of the witness to view the criminal at the time of the crime; (2) the
witness' degree of attention; (3) the accuracy of the witness' prior description;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation. Neil v. Biggers,

409 U.S. at 199-200, 93 S.Ct. at 382.

21

While the ultimate conclusion as to the reliability of identification evidence is a

mixed question of law and fact not governed by the Section 2254(d)
presumption, each of the Neil v. Biggers factors is considered an issue of fact
governed by the presumption. Sumner v. Mata, 455 U.S. 591, 597, n. 10, 102
S.Ct. 1303, 1307 n. 10, 71 L.Ed.2d 480 (1982).

22

The Georgia courts' factual findings on each of the Biggers factors are entitled
to the presumption of correctness, for the record as a whole fairly supports each
of them, and none of the other exceptions enumerated in Section 2254(d)
applies.

23

The district court found that although the second photographic array and the
photograph of Jones with three other prisoners were impermissibly suggestive,
nonetheless the witnesses had an independent basis for their in-court
identifications of Jones. In so doing, the court reconstructed the implicit finding
of the Fulton County Superior Court to that effect. This reconstructed finding is
likewise entitled to the presumption of correctness. Fike v. James, 833 F.2d
1503, 1506 (11th Cir.1987). To the extent that Jones argues that the admission
into evidence of these impermissibly suggestive procedures improperly
enhanced the witnesses' credibility in the eyes of the jury, that argument must
be rejected since the defendant elected, as matters of trial strategy, to waive
both a suppression hearing and a curative instruction.

IV.
24

Based on the factual findings of the Georgia courts, the inescapable legal
conclusion is that under the totality of the circumstances, the in-court
identification of Jones by the witnesses at trial was not unreliable.

25

The state court's factual findings also preclude relief on any of the other
grounds raised by appellant. We therefore AFFIRM the judgment of the district
court.

Honorable U.W. Clemon, U.S. District Judge for the Northern District of
Alabama sitting by designation

Jones also urges that he was denied the effective assistance of counsel at trial
and on direct appeal, that he was denied a fair trial by the interjection of his

character into issue and the admission of the testimony of a rebuttal witness
who had sat through the trial, that the evidence did not establish his guilt
beyond a reasonable doubt, and that prosecutorial misconduct denied him a fair
trial. We have carefully reviewed the factual findings of the Georgia courts on
each of these issues, and find them to be supported by the record as a whole.
The presumption of correctness to which the findings are entitled bars the
reconsideration of these claims by the federal courts
2

The circumstances which must be shown are, alternatively,

(1) that the merits of the factual dispute were not resolved in the State court
hearing;
(2) that the factfinding procedure employed by the State court was not adequate
to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court
hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the
person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his
constitutional right, failed to appoint counsel to represent him in the State court
proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the
State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court
proceeding.